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Full text of "Advice and consent on Supreme Court nominations"



94th Congress 
2d Session 



COMMITTEE PRINT 



ADVICE AXD CONSENT OX 

SUPREME COURT 

NOMINATIONS 



SUBCOMMITTEE OX SEPARAT 



OF THE 



COMMITTEE OX TltEltr ttARt^ 

UNITED STATES S^ 





Printed for the u*e of the Committee on the Judicial y 



68-971 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1976 



COMMITTEE ON THE JUDICIARY 

JAMES O. EASTLAND, Mississippi, Otairman 
JOHN L. McCLELLAN. Arkansas 



PHILIP A. HART. Michigan 

EDWARD M. KENNEDY, Massachusetts 

BIRCH BAYH, Indiana 

QTJ K N T 1 N X . BU RDICK, Nort h Dakot a 

ROBERT C BY RD. West Virginia 

JOHN V. TUNNEY, California 

JAMES ABOUREZK, South Dakota 



ROMAN L. HRUSKA, Nebraska 
HIRAM L. FONG, Hawaii 
HUGH SCOTT, Pennsylvania 
STROM THURMOND, South Carolina 
CHARLES MrC. MATIUAS, Jr., Maryland 
WILLIAM L. SCOTT, Virginia 



Francis C. Rosenberger, Chief Counsel and Staff Director 



Subcommittee on Separation of Powers 
James Abourezk, South Dakota, Chairman 



JOHN L. M(( LELLAN, Arkansas 
QUENTIN X BURDICK, North Dakota 
ROBERT C. BYRD, West Virginia 



CHARLES McC. MATI11 AS. Jr., Maryland 
HUGH SCOTT, Pennsylvania 



Irene R. Margoi.is, Chief Counsel and Staff Director 

William C. Wii.ka, Jr., Assistant Counsel 

Linda Jacobson, Assistant Counstl 

(ID 



INTKODUCTION 

On November 21, 1975, I joined Senator Kennedy and Senator 
Mathias in convening a Symposium on Advice and Consent on 
Supreme Court Nominations. The purpose of this Symposium was to 
consider the Senate's "advice" role under the Constitution in Supreme 
Court nominations, general criteria relevant to Supreme Court ap- 
pointments, and qualifications to be applied in assessing nominees. 
The S3miposium was open to the public and every member of the 
Senate was invited to participate* The need for this Symposium 
became apparent upon the resignation of Mr. Justice Douglas, follow- 
ing his courageous effort to continue serving on the Court despite a 
painful and debilitating illness. 

This Symposium was intentionally held before the President sub- 
mitted the name of his nominee in order to focus on the Senate's 
responsibilities in the advice and consent process without injecting 
personalities as an issue. The discussions were stimulating and 
extremely helpful in raising the various factors which the Senate might 
be expected to weigh in confirming not only a successor to Justice 
Douglas, but which would be relevant to any Supreme Court 
nomination. 

A panel of distinguished lawyers and scholars participated in the 
Symposium, sharing with us their evaluations of the nominating and 
confirming process as well as their analysis of standards they considered 
relevant to selecting and confirming a nominee to the Court. 

The panelists were: 

Robert Meserve, of Boston, Massachusetts, former president of the 
American Bar Association; 

Dean Louis H. Pollak, Universit} 7 of Pennsylvania School of Law; 

Professor William F. Swindler, College of William and Mary; 

Professor Alfred H. Kelly, Wayne State University; and 

Professor A. E. Dick Howard, University of Virginia School of Law. 

The panelists brought to the Symposium a diversity in background 
which is reflected in the variety of views they expressed on the Senate's 
role in filling an empty Supreme Court seat. All were in agreement, 
however, that a nominee should be a "public" person, in the broadest 
sense of that word. The types of professional experience which best 
develop this essential characteristic, which mold a nominee's intel- 
lectual honesty, judicial temperament, and attitude toward social 
issues, were the focus of the panelists' discussion. 

The joint role played by the President and the Senate in appointing 
a Supreme Court Justice addresses the basic constitutional issue of 
separation of powers. By publishing the entire Symposium, the Senate 
Subcommittee on Separation of Powers hopes to provide the reader an 
added insight into the responsibility the two branches of government 
share in appointing men and women to the third branch, the judiciary. 
I firmly hope that this Symposium will provide the Senate with a 
clearer statement of its own role in the constitutional process a^ seats 
on the Court are filled in future years. 

James Arourezk, Chairman, 
Subcommittee on Separation of Powers. 

(in) 



CONTENTS 



Page 

Introduction in 

Statements : 

Abourezk, Hon. James, U.S. Senator, State of South Dakota 3 

Kenned} r , Hon. Edward M., U.S. Senator, State of Massachusetts 1 

Panelists : 

Howard, Prof. A. E. Dick, University of Virginia School of Law 18 

Kelly, Prof. Alfred H. , Wayne State Uni versity 15 

Meserve, Robert, Boston, Mass., former president of the American 

Bar Association 4 

Pollak, Dean Louis H., University of Pennsylvania School of Law 9 

Swindler, Prof. William F., College of William and Mary 13 

(V) 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/nsentonsOOunit 



ADVICE AND CONSENT ON SUPREME COURT 
NOMINATIONS 



Participants: Senator Edward M. Kennedy, Senator James 
Abourezk, Senator Charles McC. Mathias, Jr., Senator Jacob K. 
Javits, Robert Meserve, former president of the American Bar As- 
sociation, Dean Louis H. Pollak, University of Pennsylvania School 
of Law, Professor William F. Swindler, College of William and Mary, 
Professor Alfred H. Kelly, Wayne State University, Professor A. E. 
Dick Howard, University of Virginia School of Law. 



Statement of Senator Kennedy 

Senator Kennedy. We will come to order, please. 

I am pleased to join in welcoming our witnesses this morning. 

One of the most important constitutional responsibilities of the 
Senate is the duty imposed by article II, section 2 of the Constitution 
to provide ''advice and consent" in the appointment by the President 
of members of the Supreme Court. 

As a result of the retirement of Justice William O. Douglas, the 
Senate will soon be facing the exercise of its confirmation responsibility. 
In the past, as befits the importance of the Supreme Court, the Senate 
has been diligent in the performance of its "consent" function with 
respect to such appointments. But the Senate has only rarely sought 
to exercise the "advice" part of its constitutional responsibility at a 
time when such advice may actually be most useful — at an early 
stage of the appointment process, after a vacancy occurs, but before 
a specific nomination is made. 

In recent years the Senate has become more effective in asserting its 
constitutional role in other areas of policy, especially in foreign rela- 
tions and in the budget process. To a large extent, these efforts have 
helped to redress the balance of power between Congress and the 
executive branch, and have made Congress more of an equal partner 
in our Federal system. 

This morning's symposium is an effort to develop a constructive 
and nonpartisan approach to the Senate's neglected constitutional 
role of "advice" with respect to Supreme Court appointments. The 
relatively large number of potential nominees submitted by the ad- 
ministration for consideration by the American Bar Association is a 
clear indication that the President is conducting an extensive search 
for the most appropriate candidate. 

By acting at this early stage of the appointment process, the Senate 
is in a position to participate in the process and render its advice on 
the qualifications and other characteristics of potential Justices, free 

(1) 



of the personal considerations that inevitably arise once a specific 
individual is nominated and the actual confirmation proceedings be^in. 

We meet this morning with lawyers and scholars to discuss and to 
learn how individual Senators and the Senate as an institution can 
most effectively carry out this advisory role. 

First, we -hall be addressing questions concerning the meaning of 
''advice" in the Constitution and the form such advice may take. 
There are a few precedents to guide us. 

In 1869, a large majority of both Houses of Congress signed a formal 
petition to President Grant, requesting him to nominate Abraham 
Lincoln's Secretary of War. Edwin M. Stanton, to the Supreme Court. 
President Grant was already in a struggle with the Senate over a 
previous nomination. lie welcomed a chance for a reconciliation with 
the Senate, and promptly nominated Stanton. But in a tragic turn, 
Stanton died 4 days after his name was submitted. 

In 1932, President Hoover let it be known that he would like to 
choose a noncontroversial western Republican as the succes-or to 
Justice Oliver Wendell Holmes. But the chairman of the Senate 
Judiciary Committee, George W. Norris of Nebraska, made it plain 
to the President that he and other members of the committee would 
insist on a distinguished successor in the Holmes mold. And Senator 
Borah of Idaho, chairman of the Senate Foreign Relations Committee, 
repeatedly called for the nomination of Benjamin Cardozo. After a 
search of several weeks, Hoover nominated Cardozo, surely one his 
finest acts as President. 

We know, of course, that the search has not always found the best. 
Judge Cardozo reached the Supreme Court, but Judge Learned Hand 
never did. 

S'-cond, we shall be discussing this morning the various criteria and 
qualifications and other considerations that have been applied in the 
past to appointments to the Supreme Court and that should be applied 
today. The experts will give us their views on factors such as geog- 
raphy; --ex; age; religion; race; judicial, legislative and academic 
experience; political affiliation; philosophy, the desirability of peeking 
a balance of these factors among the nine Justices; whether the nominee 
should be a lawyer at all; and whether a predictable or consistent 
application of these criteria is wise policy, even if it could be achieved. 

A truism of American history is that Presidents change, but the 
Supreme Court endures. On occasion, the appointment of a Justice 
ha- bees the equivalent of a constitutional amendment. Justice 
Dougiafi was Mill a powerful influence on the Court and the country, 
30 years after the death of the President who appointed him. President 
Ford's choice may well have a similar impact. 

Our hope is that the President will seek out the best and the ablest 
person to fill the Douglas \ acaucy. In the early LSOO's, President John 

Adam- could -ay, "iu\ gift of Chief Justice John Marshal] to the 
people of the United States was the proudest act of my life." It i- in 

thai -pint that we meet this morning, and I am pleased to welcome 

our distinguished witnesses. 

But first we will hear from Senator Abourezk and Senator Mnthins 

who will join with iu in bringing our meeting together today. And we 
ask Senator Abourezk [or anj comments that he may have. 



Statement of Senator Abourezk 

Senator Abourezk. As we are well aware, the Senate plays an 
essential role in the appointment of a new Justice to the Supreme 
Court. The President makes his appointment with the "advice and 
consent" of this body. Our consent is given — or withheld — when we 
vote on a particular nominee's fitness to sit on our country's highest 
court. 

While the "consent" aspect of the Senate's constitutional role is 
thus readily discernible, the same cannot be so easily said of the 
Senate's duty to give its "advice" on a Supreme Court appointment. 
Although the Senate must, under the Constitution, offer its advice 
to the President, it is difficult to state precisely just how that duty 
is to be exercised institutionally. I say "institutionally" because the 
Constitution is not, in my view, referring to the President's personal 
requests to individual Senators for their advice on the best person 
to name to the Supreme Court. Such advice is obtained from Senators, 
but not from the Senate as such. 

1 think that it is easier to state what this duty to give advice is not. 
It is not the right to choose the nominee. The Constitution states that 
the President nominates, not the Senate. Therefore, our advice should 
not be expressed in the form of a list of names from Which the President 
must then choose. That is not our role. 

However, neither do I believe that the Framers inserted the word 
"advice" into the Constitution carelessly. They surely intended that 
the word in some way affect the process whereby the Executive and 
the Senate play their joint role in the appointment of a new Justice. 
In fact, the word "advice" cries out for Senate participation in the 
selection process at some point prior to the strictly "yes" or "no" 
exercise of consent. I would like to read a brief paragraph from a 
speech I inserted into the Congressional Record outlining the history 
of this part of the Constitution. 

"The Senate appointment of judges was approved by the Consti- 
tutional Convention on July 21, 1787, and was included in the draft 
of the Committee of Detail on August 6. Hamilton, unhappy with 
the diminution of Executive power, proposed as a compromise that 
the President appoint and nominate with Senate power to 'reject or 
approve,' implying that the Senate not participate in the nominating 
power. The Committee of Eleven, on September 4, accepted Hamil- 
ton's compromise with one significant modification: the words 'reject 
and approve' were changed to 'advice and consent', thereby expanding, 
the role of the Senate. This compromise was finally agreed to in the 
very last days of the convention." 

If that advice is to be anything but a sham, it must be received 
before a particular nominee is presented to the Senate for its consent. 
What, then, is our role, if our advice must be given prior to giving our 
withholding consent, yet does not extend to suggesting names our- 
selve-? 

It is our duty, I believe, to propose certain standards which any 
nominee must meet. In doing so, I do not suggest that the Executive, 
in making the nomination, is thereby limited to considering only the 
criteria we recommend. That would infringe upon his power to nom- 
inate. But we can articulate those standards by which every nominee 
will be measured before our consent is given to his or her appointment. 

68-971—76 2 



4 

It is in this spirit that I think it appropriate that we meet here 
today. I am pleased and honored that these five distinguished gentle- 
men have been able to join us for this symposium. I hope that, with 
their assistance, we can begin to examine those standards which the 
Senate should consider when it evaluates the fitness of the next 
nominee to the Supreme Court. 

Thank you." 

Senator Kennedy. Thank you very much, Senator Abourezk. 

We will start this morning with Mr. Robert Meserve. Bob Meserve 
is an attorney from Boston and an old friend of mine. He is past presi- 
dent of the American Bar Association and former chairman of the 
ABA Standing Committee on the Judiciary. Mr. Meserve is appearing 
today to share his own experiences and perspective with us, but not 
as formerly representing the ABA at this symposium. And we are 
delighted to have you? 

Statement of Robert Meserve. Lawyer, Boston, Mass. 

Mr. Meserve. Thank you very much, Senator. It is a great pleasure 
to be here. I am very happy to participate in this process, and particu- 
larly happy that the Senate is interested in attempting to delineate and 
exercise its power of advice if it sees lit to do so. 

I speak today on the basis of a long-time experience with judicial 
nomination-, not only in the capacity of a former president of the 
American Bar Association, but also as a former chairman of its judi- 
ciary committee. But I would like to emphasize your remarks, Senator, 
that I do not represent the American Bar Association here. I -peak as 
a private individual with a tremendous interest in the subject m 
and in the hope that I can be helpful. 

T should start off by saying that 1 think the objective 4 to which we 
would all subscribe i- obtaining for the vacancy of the mo^t distin- 
guished and presumptively the most able person that we can possibly 
find to discharge the duties of that high office. It i-, indeed, a most 
significant one, and we need the cooperation of everybody concerned 
in the nominating process in order to reach that objective, which i> 
clear, and 1 am sure is agreed to in principle by all the parties partic- 
ipating in it. 

Lawyers, it seems to me, have a particular responsibility here but 
that responsibility, as far a- the American Bar Association is concej iied, 
and its effective and efficient committee, is limited to an analysis of 
what we might loosely call professional qualification. I think it would 
be \^v\ unfortunate if a committee which has been called upon 
repeatedly by Presidents to express its opinion on judicial nomina- 
tions, both to tbis Court and to our other court-, should eve! 1 at t < 
to make a selection based on political or ideological grounds. Those are 
important considerations in the -election of a Supreme Court 
Justice, perhaps the most important considerations that the Senate 
should consider. 

1 think it would be unad\ i-able for the bar of a committee of the bar 

to attempt to exercise that prerogative. What the bar can do, and 
what the American Bat- Association committee attempt t«» do, i- to 
pa-- upon professional qualifications. And specifically, it has said in a 

report to the hou-e of delegate^ of the bar that it will limit it- I 

to professional qualifications of the proposed nominee, his integrity, 



his judicial temperament, and his professional competence. It will not 
attempt to report on political or ideological matters. And as far as I 
know, that report, which was made in 1970, still states the policy both 
of the Bar Association and of its committee. 

I have not nryself, since I ceased to be chairman of the committee, 
regularly attended its meetings nor taken part in any discussion of any 
nominee except as my advice might be asked as to some individual or 
individuals with whom I was acquainted. 

I stand ready to answer any questions, but I think any more general 
remarks from me might not be helpful. 

Senator Kennedy. Thank you very much, Mr. Meserve. 

I would like to examine these criteria somewhat more elaborately. 
For example, in the area of integrity, is this just a question of honesty, 
or does it go beyond that? 

Mr. Meserve. Well, I think I would rather define the word integ- 
rity as including all kinds of honesty. It seems to me that it is not 
just a question of whether a lawyer will make way with his client's 
funds, something obviously dishonest of that sort. The issue of integ- 
rity, as I see it, goes to his intellectual integrity as well, and his rep- 
resentation of his clients if he is a practicing lawyer, whether or not, 
in his representation, he makes clear the areas where he himself i> 
speaking for himself and where he is speaking for his client. He make> 
clear his professional interest where one exists and does not try to tell 
people, in effect, that this is my opinion when it is an opinion that he 
is paid for giving. 

That is the sort of integrity, Senator, to which we address ourselve>, 
although, of course, in the obvious cases where there is a question of 
financial integrity, we surely would be interested in that. I cannot con- 
cede that any President would knowingly, at least, nominate anybody 
whose character in something of that kind was warrantably attacked. 

But in the field of professional integrity, the word has a much broad- 
er scope I think than the word integrity alone might suggest. 

Senator Kennedy. How do you go about measuring judicial tem- 
perament? 

Mr. Meserve. I wish, sir, that I honestly could tell you that I 
knew. I think that it is a question of investigating attitudes, whether 
or not the person, who by definition is a man who has been in public life 
for a period of years, has an attitude which indicates that on the Bench 
he would try to decide the case on the merits of the matter and not on 
the basis of preconceptions, not on the basis of who is pressing the mat- 
ter and so forth, and he will not be irritable with counsel or, in the case 
of the lower court judge, with witnesses and parties. That he will give 
everyone an opportunity fairly to speak his mind, and will weight the 
evidence or the arguments as best he can. 

That is what we mean by judicial temperament. How you go about 
determining it is very difficult. With some people it is not. If you have 
the history of a judge who habitually harangues litigants in court, and 
so forth, you know that his judicial temperament wears pretty thin 
pretty quickly and you surely would not recommend him for advance- 
ment. 

Senator Kennedy. In the area of legal competence, is the criterion 
just competence within the particular field where that individual has 
been practicing or does it have a broader definition? Do you think 
political experience is considered professional experience '. 



6 

Mr. Meserve. That (as you know, of course, as a lawyer) is a 
double question. Let me first say that as far as political experience is 
concerned I think that our members of the American Bar committee, 
although they do not go into questions of political views, would 
rd political experience as a plus. We think it is obviously a duty 
of an American citizen to participate as far as he can in the political 
process, and we are very well aware that people that have occupied 
political office, particularly national political office in this case are 
people who have been subjected to ideas and have formed ideas which 
may be very valuable on the Bench, and we would regard it as a plus. 

But we would not regard it as the equivalent of professional experi- 
ence, which is the other issue to which your question directs itself. 
We would feel, and this gets back to a suggestion made by Senator 
Abourezk, we would feel that it would be. at this time in the life of our 
country, extremely unfortunate if the President or the Senate were 
to adopt the option, which is theirs under the Constitution, of nominat- 
ing or confirming someone to this Court who is not a lawyer. We feel 
that only a lawyer will have the ability to deal with the great number 
of cases which come before the Court, to determine those which are 
significant in the legal sense and so forth. We think it would be very 
unfortunate if a man were selected who had never studied law. who 
would spend the next 4 or 5 years on the Bench studying law at 
Government expense. And we think this would be unfortunate, even 
• i a very good mind, and even though he had a very good 
idea of the political process. 

There are many, many case- which come before any court, including 
tic Supreme Court, which are not heavy, at least, in political content 
which involve a knowledge of the history of law and involves the 
knowledge of how the law is practiced from the point of view of a 
practitioner. 

■it or Kkxxedy. Would the nonlawyer be automatically stamped 
nonqualified? 

Mr. Mkskrve. The problem has never arisen, Senator. I would not 
want to commit my successors. But I think the chances are very 
good that a nonlawyer would not be regarded as having that profes- 
sional standing. 

Senator Kkxxedy. I know, and I am sure you know a certain 
reporter, and J will not mention his name, who prior to the time 
that he was going to report on the Supreme Court, decisions wen! 
up to a distinguished law school in our part of the country, Harvard 
Law School, and in 1 year took courses in the first, second, and third 
and received atraifhi A\ in all of them. He then reported In- 

experience- and had a distinguished record in writing reviews of that. 

Obviously that i- an extraordinary and unusual case, but 1 Buppose, 

and your point 1 believe is well-taken, in terms of the weight that has 

to be given to any qualified lawyer, regarding the burden that would 

have to be overcome by Mmieone who i> not trained as a lawyer. 

Mr. Mbsebvk. That, Senator, is exactly why 1 said i would not com- 
mit my successor, it i^ possible. Although I doubt it that such an ex- 
traordinary case could arise. 

1 would' like to address myself to your other question, if I may, 
and ii concern- the question of whether or not we look for a professional 
competence in a limited field a.-, lor example, a Lawyer who has spent 



his life practicing; patent law and was a very good patent lawyer. I 
have a very strong feeling on that, Senator, and my feeling is that we 
are interested in lawyers, for the Supreme Court particularly, who 
have demonstrated that they are more than practicing. 

We want practicing lawyers (or lawyers who have practiced, who 
may be teaching in law schools or something of that sort). But, 
beyond that, we want lawyers who have shown in some way a knowl- 
edge beyond the knowledge of a specific field of law, who have 
covered many fields of law, who have shown an intellectual interest 
and an ability to get beyond the particular and search for the general ; 
one of the duties I think of a Justice of the Supreme Court of the 
United States. 

Senator Kennedy. Last summer the ABA adopted a resolution on 
women in the judiciary. As I understand the resolution, it is general 
in nature. Do you believe that special emphasis should be given to 
seeking a qualified woman as an appointee to the Court? 

Mr. Meserve. Yes. I feel very strongly that that language does not 
direct itself to the issue that at any given moment in history it is 
important to create a seat specifically for a woman, or to appoint a 
woman in an instance where it is clear that there are available people 
of the other sex who are more competent than she. I think it is, 
however, a very important generality. 

I supported the idea that a competent woman should be on the 
Supreme Court. I think it is very unfortunate, Senator, when a given 
seat on the Court becomes designated as a Jewish seat or a New 
England seat. (Incidentally, we don't have any now as you know). 
Or some other group representation. I think both the group and the 
individual may suffer. I think that in every instance the objective 
ought to be to find the best qualified person, male or female. 

Senator Kennedy. People do think that special seats might be for 
special groups and they might be entitled to special seats on that 
Court. Doesn't this theory have an impact of lessening the stature 
because of the public perception that the nominee was not subjected 
to the same rigorous standards since he or she fits some category? 

Mr. Meserve. Exactly. 

Senator Kennedy. Some particular pigeon hole? 

Mr. Meserve. That is the point that I was trying to make I think. 
You are absolutely correct. I think, if Iliad the good fortune (when I 
was young enough to do so) to have been appointed to that Court, 
I hope people would not have looked upon me, if I had been ap- 
pointed, as the holder of the New England seat, or as the white, Anglo- 
Saxon, Protestant, seat, or whatever particular group I might fall into. 
I think that would be demeaning to me and demeaning to the Court. 
And I would surelv hope that we would continue the process of sur- 
veying the whole field when a vacancy exists. 

On the other hand, I do feel very strongly that the Court ought 
broad sense, and not in any theory of proportional representation, to be 
truly representative of the people of the United States. And I would 
hope that that general overall policy, which applies to geography as 
weu as ethnic origin, race, sex, ail of these tilings would be served 
President. But not to the extent of handicapping the President and the 
Senate in the selection process, 

Senator Ahourezk. On this panel you are, I think, the only prac- 
ticing lawyer at this point. 



8 

Mr. Me serve, I am very conscious of that, sir. 

Senator Abourezk. I think I know what your views are on whether 
or not the nominee ought to be a practicing lawyer or someone who 
has practiced; but how valuable, in your view, is the nominee's activ- 
ities as a legal scholar? Would legal scholarship be sufficient if he did 
not practice? 

Mr. Meserve. For the Supreme Court of the United States, I would 
feel that the qualifications are very difficult to define in advance. I 
would say that my good friend and former professor, Felix Frankfurter, 
for example was a distinguished Justice of the Court, that his actual 
practicing experience was extremely limited, and that he came to the 
Court essentially from the cloister. And 1 think he did a very, very 
good job, although there were some I know who would disagree with 
me. 

I think that generally speaking it is unfortunate that there are too 
many law school teachers today who, perhaps, have not had the back- 
ground of practice, because that would be useful to them as professors. 
But nevertheless, just as I would think that it is not necessary to ap- 
point a sitting judge by promotion to the Supreme Court, but that the 
nomination could be made from the bar, so 1 would say the nomination 
clearly could be made, and in many instances might profit ably be 
made from academia. 

Senator Abourezk. Xow, there have been a lot of commentators 
since Justice Douglas announced his retirement who have talked 
about the politically best thing for President Ford to do with this 
nomination. Some have said now is a perfect time to pick a woman 
because that would be good for his election next year. Others have 
said that in order to ward off the Keagan challenge he will pick a 
conservative, or someone of Governor Reagan's philosophy. Would 
you comment on those kinds of observations? 

Mr. Meserve. J think you have suggested my answer. As a lawyer 
T would feel, 1 would feel in the first place that I was unable to com- 
ment upon the fitness of any person who is chosen on such a basis, 
and J would hope thai no person would be chosen for n purely political 
reason. 1 would surely expect that any person that was chosen would 
he in part selected because of his or her political view-, but 1 would 
hope that the person to be selected would not be selected in order to 
gam political advantage for the President or anyone else. And I 
surely have enough confidence in the Office of the Presidency to believe 
Presidents would not nominate to this distinguished office for thai 
purpose. And if bhey do, 1 should think that the public reaction would 
lie whole he unfavorable rather than favorable. 

: Abourezk. Now one final question. It has been suggested 
that perhaps the Senate ought not to be involved in establishing 
Qualifications lor a nominee. Given the circumstances under which 
lent Ford came into office and the length of time he has left, and 
the difference between the Senate considering nominees lor the 
Cabinet as opposed to the Supreme Court, do you view the increased 

activity of the Semite in this regard as good or had or indifferent? 

Mi. M Well, it i- in my opinion wholly good, and I em- 

phasize again I speak a- an individual, and not i one connected with 
America B ciation. I think it is very desirable that in 

advance of the .-election of a particular nominee as to whom there 



9 

may possibly be ideological or political objection on the part of an 
individual Senator, that the Senate make it clear to the President 
that they are interested in obtaining for the office, regardless of 
politics, the most outstanding practitioner of the law who can be 
obtained at this time from the bar and who, and I hasten to add to 
that, who gives a reasonable prospect of being an effective period of 
time, given normal human life expectancy. 

Senator Abourezk. Thank you. 

Mr. Meserve. Pleasure. 

Senator Kennedy. Given the fact of the importance and significance 
of the Court's workload, and the statutory interpretation, is legislative 
experience more or less important as - it might have been in the past 
history of the country? 

Mr. Meserve. Everything is so much more intensified, Senator, 
that I think it just becomes a question of degree. I do not think 
legislative experience is airy more or less important today than it was 
when Senator Black was nominated, for example. 

I would sa}' that given that, however, I regard legislative experience 
as a plus, but not as a replacement for adequate experience at the bar, 
professional experience. 

Senator Kennedy. Thank you very much. You have been very, 
xery helpful. 

Mr. Meserve. Thank you, Senator. 

Senator Kennedy. Dean Pollak, we are glad to have you here this 
morning. Dean Pollak is with the University of Pennsylvania School 
of Law, and a distinguished author of "The Constitution and the 
Supreme Court; a Documentary History." Would you like to proceed. 

Statement of Louis H. Pollak, Deax, University of Pennsyl- 
vania School of Law 

Mr. Pollak. Thank you, Senator Kennedy. It is a great pleasure 
and privilege to meet with you and Senator Abourezk this morning 
with this distinguished group of experts, including our one practi- 
tioner, Mr. Meserve. I am sorry that he had to depart to get back to 
the act of practice. 

But I do want to say that I think the United States is greatly 
indebted to the efforts Mr. Meserve and his colleagues in the American 
Bar Association, most especially Mr. Bernard Segal, have made over 
the past many years to be of assistance to Presidents in the selection 
of members of the Federal judiciary, and especially the Supreme Court 
Justices. Of course, as Mr. Meserve properly said, that assistance has 
to be characterized as one of responsiveness to requests for professional 
judgments rather than the individual function which the Constitution 
vests in the Senate, as you so well pointed, Senator Kennedy, in your 
opening remarks. 

There is no private group which can wish or be permitted to sub- 
stitute itself for the responsibility of the Senate in this regard, and I 
know the American Bar Association feels very deeply that constraint 
on its role. And for these reasons I think I'm sure 1 speak for all of us 
here this morning whom you have asked to come and meet with yon, 
we feel very happy to have the opportunity of discussing with Mem- 
bers of the Senate the responsibilities which the Senate 1 bears, together 
with the President for assuring that appointments to the Supreme 



10 

Court are of the highest quality and will carry forward our consiiui- 
tional traditions. 

I suppose no more important evidence of the consequences that we 
are discussing today could be adduced than simply a moment's re 
lection of the extraordinary career of the Justice whose place is now 
vacant. It is quite evident that Justice Douglas has given to this 
Nation an extraordinary constitutional heritage. I would like if I may, 
Senator, simply to pick up briefly on some of the matters which were 
in discussion between you and Senator Abourezk and Mr. Meserve. 

Senator Kennedy. I thought what we might do i^ to a^k each of 
you for brief observations a- to the remarks of Senator Abourezk 
and his opening statement and my own and in some of tlie area- we 
have just touched on here; and then come back to some discu — 1 >n 
within the group. And I wotdd hope that at any time you want to 
interrupt each other to comment, please do so. I want this to be as 
interactive as possible. 

Mr. Pollak. Fine. Well, I would certainly appreciate being inter- 
rupted, and I think it would lend some to the process. 

First, Senator, you inquired as to whether politics and participation 
in politics is an important attribute, or one really not to be given 
weight. For myself, I would have to say that as we survey the pe; - 
the 100 persons who have constituted the Supreme Court over our 
history, and those who have contributed most greatly to it, I think we 
would have to conclude that participation in public life of this country 
i- :i major qualification, not perhaps an indi-peie able qualification, 
but likely to be a major qualification predictive of important achieve- 
ment. And I won't quite say, as I understood Mr. Meserve to say, 
that it cannot be a substitute for the active practice of law. 

I think, picking up on your question. Senator, as to the utility of 
legislative experience, though I am not disposed to say it is more im- 
portant, being a legislator is a more important qualification now than 
it has been in the past, and 1 do think that participation in the legis- 
lative process in certain other aspects can be very important a- a 
preface to a judicial career. If 1 may reach back into an episode, for 
example, thai h; flow Raised, 1 recall when Congressman Poll's 
name was suggested for the vacancy that ultimately went to Justice 
Powell. Thfl point was made that he had had \eiy little experience in 
ctice, and most of his professional life had been in Congress, It 
strikes nie that there was a Congressman whose special participation 

in the work of the EE0US6 -Judiciary Committee at a number of devoted 

and disciplined professional levels gave his candidacy a seriousness 
which, with all frankness, I would not -a;- would !• I ovei all 

Members of either the ( 'ongress or the Senate, whether lawyers or Qot. 

I suppose what 1 am >a\ ing then is that if one would look ai particular 

auces one could conclude that in some circumstances participation 
in the legislative process could itself be regarded as professional 
ai i.-iiiiiiieiit of an important kind. 

But th me the opportunity to say something which I hope 

won't be taken as rudeness, Senator. Hut if it is taken w rudeness, 
then so be it. It would be, in mv view, vers regrettable if the Senate 
were to continue what I think has been e traditional practice of eh ing 
virtually no serious scrutiny to nominee* from the Senate itself and 
nominations from the House of Repn tivee. 

i Ki.wi.dv. That is not rudeness, that is just accurate. 



11 

Mr. Pollak. I thought what T said was descriptively accurate. 
The rude part might be my suggestion that it was time for the Senate 
to mend its ways. 

Senator Black turned out to be one of the great ornaments, as we 
know, of our Bench. But it need not have been so. And I would hope 
that the Senate could begin to conclude that if a Member of the 
House of Representatives or the Senate were proposed for a -eat on 
the Supreme Court of the United States, that Member should be 
subject to the same kind of rigorous scrutiny that any other nominee 
would, or suffer the fate which you identified, Senator, as being 
regarded as having lesser stature because he or she was cleared 
routinely. So that is my rude intervention. 

With respect to whether a nominee needs to be a lawyer, I appreciate 
Mr. Meserve's opinion, and I guess I would have to disagree with it 
in principle. T was informed a few months ago by 

Senator Kennedy. I do think that the point that is raised about 
the clubby atmosphere of the Senate in terms of the consideration of 
one of its own is a fair and legitimate point to be made. We have 
seen the review of the now President Ford's qualifications at the time 
that his name came up as Vice President. There was a careful review 
that was made both in the House and the Senate that would indicate 
there is also a situation where in the recent past they had exercised 
that responsibility in a meaningful way. The record is clear on both 
sides, and T think what you are doing is flagging an important warning. 
The judgment that the Senate must make from this particular con- 
stitutional requirement should be as strict for one of its own Members 
as it would be outside. 

Mr. Pollak. Well, I very much welcome that observation, Senator, 
and I certainly would applaud the candor with which the Cong-res.-, 
addressed the nominations of Congressman Ford to be Vice President 
and, indeed, Governor Rockefeller to be Vice President. There is 
some chance that some people might perceive the 25th amendment 
standard and the congressional involvement there as a more searching 
one than at the judicial appointment level, and I am glad we are in 
agreement that they should not be. 

I was simply going to say on the point of whether one had to be a 
lawyer at all, it was recently pointed out to me that Professor Corwin 
had had a lingering sense of neglect, that he had never been considered 
for the Supreme Court, and it seems to me quite clear that he would 
have been an ornament to that Court. T have been thinking before you 
mentioned your anonymous journalist, Senator, that there, indeed, was 
an example of a nerson whose identity I would not reveal by referring 
to his book, "Giddeon's Trumpet" or his distinguished lectures at the 
University of Pennsylvania a couple of years ago on lawyers and 
civilization, but clearly one knows of nonlawyers who are as fully 
versed in the constitutional process as lawyers. I see no likelihood that 
a nonlawyer would be nominated, but I think the record, the con- 
stitutional record should be clear that there are nonlawyers qualified 
to participate in the constitutional process. I even think there may be 
journalists, and I think I know of one journalist in the room whose 
anonymity I will not break, who has shown in his writing of the Court's 
work the same kind of oualities that we would like to look for. 

Senator Kennedy. How do you think the other 10 journalists feel'? 

68-971—76 3 



12 

Mr. Pollak. 1 have not indicated whore i was throwing that golden 
apple. Senator. 

If 1 may, I would like to turn to the question you raised and dis- 
eased with Mr. Meserve aboul the appropriateness of considering; 
qualifications such as sex or race or religion. 1 think it is very important 
that wc address these concretely, l think r would, in some respects, 
from Mr. Meserve in emphasis, though certainly not in his 
conclusion that the primary, the primary responsibility is to s< 
a Justice of the highest professional rank, or with qualities of consti- 
tutional judgment which would forward our vital pro< 

i would think that in 1975 it would be an important ingredient in a 
President's thinking and in a Senator's thinking to be concerned with 
finding wilhin the universe of the highly qualified people, finding a 
woman to serve on the Supreme Court. I emphasize again within the 
universe of highly qualified people. 

Why do 1 9ay that? Not because I think the Supreme Court ought 
to be a representative institution, but because it is an institution in 
whose composition and processes the American people must have 
confidence, i think it is entirely apparent that most of our two centuries 
of national existence were a period in which black citizens looking at 
the Supreme Court could not see in it any indication, from the endless 
procession of white males who served on it, that their citizenship was 
being taken seriously. And when Mr. Justice Marshall was appointed 
to the Court, it was an appointment long overdue. He is one of our 
most distinguished lawyers, quite obviou>ly, at the highest level of 
professional achievement. But, he hail been so for many years before 
his appointment. And one might add, that Judge Hasty had been at 
the same level of professional achievement for a long time, and there 
were other black lawyers, such as Charles Houston, before them who 
would have ornamented the Supreme Court of the United States and 
not there. One cannot help but think that the institution suffered 
in terms of the view taken of it by millions of American citizens. 

In that sense, it was important that there would be a time when a 
black Justice would be appointed. That does not mean, in my view, 
that one must always have a black member of the Supreme Court. 
But one must be sure th.it the Court over the long term fairly reflects 
our pluralist society. 

For decades now, we have generally had, but not continuously had a 
Catholic Justice. 1 think it was an important thing which President 
Truman did after the death of Mr. Justice Murphy not to insist that 
be a Catholic. Iu the same sense, I think, though I am 
not on the whole an admirer of some of President Nixon's views about 
the judiciaryj I think it was an important thing thai he did in con- 
cluding that it was not essentia] that a Jew be appointed to succeed 
Ju tice Fortas, for the reason that the point had been made. Whether 
we have a Catholic or two or three on the Court at any given time, or a 
Jew. or two or three on the Court at any given time, i^ now no Longer 
important. It was important. It was important when Brandeis was 

appointed that thai supremely qualified Justice not be turned away 
for the variety of biased reasons for which he was opposed, li was 
very important when Chief Justice Taney was appointee] to the 

Supreme Court of the United States, that that Catholie Lawyer and 

political Leader not be turned away because he was a Catholic. 



13 

But once we have established the principle I think there is no longer 
a claim for any particular ethnic or religious place on the Court. 
Therefore, in order to establish the pluralist principle as it relates to 
women, I think now, or very soon, it would be appropriate for a 
President to give affirmative consideration to the sex of the nominee. 

Senator Kennedy. Thank you Dean Pollak. Professor Swindler, we 
will now hear from you. 

Professor Swindler is a distinguished professor at the College of 
William and Mary and the author of "Court and Constitution in the 
20th Century." 

Statement of William F. Swindler, Professor, College of 

William and Mary 

Mr. Swindler. Thank you, Senator Kennedy. 

I was interested in Senator Abourezk's remarks that the function 
of the Senate in advice and consent with reference to appointments, 
to the judicial branch, particularly to the Supreme Court, carried with 
it substantially more significance and responsibility on the Senate's 
part than perhaps other Executive nominations to other executive 
branches, because after all, the judiciary is the third branch of Govern- 
ment. Therefore, the other two branches would, in principle, seem to 
me to share equa! responsibility in finding the people who are going to 
be permanent occupants of those positions, as distinguished from 
appointments that perhaps are terminal with the administration of 
a particular time. 

Much has been suggested about the ambiguity or the lack of knowl- 
edge of the word advice, and I suggest that probably, in the beginning, 
it w T as assumed that it was a matter of political reaction on the part of 
the legislative branch to the proposals of the executive branch that 
were considered. In the original drafting of the Constitution, it probably 
was a matter of politics in terms of the elite group who ran politics 
at that time. That was perhaps subliminaily in the minds of the 
Founding Fathers. 

Nevertheless, the record shows that almost immediately the 
politics that was practiced in advice and consent was politics in the 
well-known seme of the word. 

Now, we perhaps have a good deal to leam from the procedures of 
some States. I am thinking of the judicial nominating commissions 
which have sprung up known as the Missouri plan and the California 
plan and so on, over the years, in an effort to avoid the most partisan 
and least responsible elements of political consideration going into 
judicial selections. We have gotten only as far as a proposal. I believe 
it was by Senator Xiinn, that there be a Judicial Disciplining lie view 
Committee, to act after the man is already on the Bench or already has 
been on the Bench, which might be the analogy to be drawn from the 
States that applies to the Federal Government. Absent the possibility, 
perhaps even the constitutionality, of the nominating commission 
at the Federal level, it would seem to me that this should be the func- 
tion of the Senate and particularly the Senate Judiciary Committee, 
in lieu of such a screening function. It is all the more important, 
and this again addresses itself to the matter of what are the guidelines 
that the committee ought to follow. 



14 

In an article that I did for the American Bar Association Journal 
in 1970. I reviewed at that time the historical record of rejections by 
the Senate of Supreme Court nominations by various Presidents. 

There were 11 that were on record as having been specifically 
rejected; there were 26 altogether who represented proposals of 
nomination- by the White House which, for one reason or another, 
were not successful. Eleven of these were specifically rejected by a 
recorded vote. A substantial number of offers were withdrawn by the 
President when he saw the political handwriting on the wall. Still 
others were a matter of the Senate euphemism called "postponement^" 
of action, which simply meant that the Senate had no intention of 
taking action. This was usually when the end of a term Was reasonably 
in prospect. 

What this says, T suppose, is that essentially, and perhaps desirably, 
some political considerations in a nonparti-an sense, arc factors in the 
legislative review of the Executive proposals for the third judicial 
branch. Political considerations, then, probably are unavoidable, and 
perhaps desirable, and if that is so, I would voice what Dean Pollak 
probably was too diplomatic to voice, and say that it is probably 
politically opportune for all parties concerned to consider the can- 
didacy of a well-qualified woman to the judiciary at this time. It 
would certainly be the last major social factor to be addressed and 
disposed of; thereafter, the question becomes academic. 

I would hope that in the event of a woman candidate, once the 
question of a woman's being capable of being nominated, politically 
capable of being nominated, has been settled, the Senate committee 
would address itself to qualifications with the same degree of pragma- 
tism and political consideration as well as professional considerations 
that it would use with reference to a man. 

Among various terms that perhaps we can discuss in dtie course 
would be this matter of collegia! courtesy or senatorial courtesy, which 
I would hope would not be equated with or considered to be synony- 
mous with absence of painstaking scrutiny of the candidate in any 
event. But the sum of what I wanted to say was essentially that it is 
a political proceeding, it was undoubtedly considered from the begin- 
ning as being a proceeding of high politic.-, and that this is essentially 
the ultimate effect thai we will have to keep in mind when the decision 
i- made in a prospective case, whoever the individual happens to he. 

Senator Abourezk. Thank you, Professor. 

Senator Kennedy. 1 want to recognize the presence of Senator 
Javite here who is -\ former member of the Judiciary Committee and 
has been enormously interested in and involved in all of the considera- 
tions of qualified individuals for the Supreme Court and in all of the 
debates. We welcome you here. 

Senator Javits. Thank you, Mi-. Chairman. 

Senator Kennedt. We hope that you will participate t<> the extent 
that you wish during the course of this symposium, 

Our next panelist is Professor Alfred II. Kelly. Professor Kelly is 
from Wayne State University and author of "The American Con- 
stitution: [ts Origins and Development." 



15 

Statemext of Alfred H. Kelly, Professor, 
Wayne State University 

Mr. Kelly. Thank you, sir. It is an honor to be here. I appreciate it. 

Let me make a statement which I think is almost the exact opposite, 
in one respect, of which Mr. Meserve made. I would argue that it i> 
imperative that a Supreme Court appointee be a politician in the best 
sense of the word, that he be a public man who has participated in the 
public life of the Nation and that is aware of public issues and has parti- 
cipated in that procedure, as we understand it, and that he know- 
something of political reality as well as the technical aspects of the 
constitutional system. 

I could approach that from a variety of different points of view. Just 
sitting here and jotting as my colleagues here spoke. I have put down a 
list of what might be called distinguished judges. Since I just did this 
off the cuff, I cannot claim that the}' represent any exclusive li^t. But 
the generalization that came to me as I thought about it, and I had 
thought about it before, is that they do not represent any particular 
kind of public man, but they are all politicians in the best sense of the 
word. Since they are dead, most of them or all of them, I suppose they 
are statesmen now. 

But, in their day, they were involved very much in the politic il 
process: Marshall, a Congressman, a diplomat, as well as a practicing 
lawyer; Story, a Congressman, a Republican politician; William 
Johnson, State judge. Republican politician; Taney, a federalist politi- 
cian, Jacksonian Cabinet officer who got his payoff on the deposit- 
question; Chase, Democratic Congressman, Lincoln's Secretary Treas- 
urer; Field, State judge; David Davis, Senator, the first Harlan. 
Republican State judge; Hughe-, before his first appointment, 
former Governor of New York, before his first appointment, former 
Governor of New York, before his second appointment, President hd 
candidate and Secretary of State, Brandeis is almost the only one 
you can think of offhand, with one or two exceptions, who had nut 
held public office, but he was a public man in the extraordinary seasq 
of the word, and certainly a politician. 

Black, the U.S. Senator, and Stone, law professor and Cabinet officer. 
Frankfurter, a public man, certainly as Iris writings revealed, 
though technically lie had been a professor for the most part at Har- 
vard Law School. 

The single thing that stands out in this list, and my colleagues here 
could add to it, or subtract from it, is that those men ah had ciistin- 
guished careers as public figures. They understood the give and bake 
of the politics, they understood the political process, they ii.ul 
successful at it. They knew thai in a constitutional d.Miorrary there 1- 
a reflex arc relationship between the people and the political pro 
and the responsibilities of office. 

I' do not think that can be put aside. I think it is naive to a^unu 1 
that the President of the United States would not take into eonsid 
tion the element of politics in a nomination. I do not know the p< 
of every nomination, and i doubt if anybody has studied them that 
closely, but of the principal ones that I can think of, both auc« 
and failures, the political aspect was prominent in the President - 
thinking, and it was also prominent m the Senate's thinking. 1 think it 
is ridiculous to say that it would not be a factor. 



16 

There is a second reason why I think it is important to appoint a 
public man. (The word politician seems to be tainted, so let ns speak 
of the prospective Justice more as a public man, although for me the 
word politician is not tainted.) A public man is needed because of what 
1 as a constitutional historian, I would call the somewhat altered 
character of judicial review. Now. 1 would argue that since the great 
judicial crisis of 1937, and the period of judicial self-denial, which took 
place for a time thereafter, that the Oourt has emerged as a new kind 
of Legislative body. T am using that term in a very broad way. The 
court ha- taken on the task of solving certain social, political, consti- 
tutional, and economic problems, which I am sure the Founding 
Fathers thought of as being essentially Legislative in character. I am 
thinking of the Brown decision, for example. I am thinking of the birth 
control decision of 1965, the Griswold decision. I am thinking of the 
decision with respect to abortion, I am thinking of the death penalty 
ion. Those are public policy decisions, they are legislative deci- 
sions in the highest sense of the word. 

I know the word Legislative here can be subjected to technical ob- 
jections, and I recognize that. But, what is involved here, if one reads, 
for example, the death penalty opinions, is that they are a mixture of a 
consideration of the technical, legal aspects of the eighth amendment, 
and whether or not it i> subject to change through the judicial process 
on constitutional growth. But there i- also behind that a very heavy 
mixture of public policy considerations 

Though technically, in the Brown opinion, the Court didn't do this, 
nonetheless, if you look at the unanimous opinion of the Court in that 
case, what one sees behind it is very clearly a public policy position. 
What the Court i> passing upon is an aspect of social revolution which 
it i- recognizing and which it is giving life to in the Constitution. 

1 cannot conceive of a President of the United States not taking this 
factor into account, and I think it must be taken into account. And I 
think the nieces or failure of a Judge on the Supreme Court comes 
from whether or not he i- a public figure in the highest sense of the 
word. 

I keep saying the highest >ense of the word. I do not mean in a 
narrow, partisan, mean sense of the word, but perhaps a partisan in 
the highest sense of the word also. 1 think if 1 were to describe Justice 
Douglas' career, or Justice Black's career, or the second Justice 
Harlan's career, or the first Justice Harlan's career, 1 would say that 
on the Court they were politicians in the highest sense of the word. 
They were aware of the meaning of what they did and the conse- 
quenC68 of their action on the growth of the social order, the economic 
order, the political order, the political mix in the country, the thrust 
and direction of the American constitutional democracy. 

1 think that a President of the United Mate- and the Senate must 
take that into consideration. 

For the rest, I subscribe, I think, for the most part to the observa- 
tions of my colleague-. And i will not detain \ oil at length. 1 do think 
that the Observation that the time ha- come to appoint a woman 

Senator Abourezk. Prole— or Kelley, maj I interrupt you just a 
moment before \ ou go on? 

Mr. Kelly. Yes, sir. 

Senator Ab What you have just finished describing 1 think 

i- perhaps a confirmation of the charge that i- sometimes leveled at 



17 

the Supreme Court that it merely follows the election returns, and 
perhaps anticipating them. You stated that all of these public men 
were well aware of the effects of their decisions on politics and society. 

Mr. Kelly. It is not quite the same thing, Senator, as saying 
they followed the election returns. Though I think they often have. 
I agree with Mr. Dooley on that subject. 

Senator Abotjrezk. Yet, I wonder if that kind of a judge, then, is 
able to make a decision, when he is aware that it might be a very 
unpopular decision but nevertheless one that is just in terms of what 
I guess you and I might think of as being a just decision. For example, 
a desegregation decision which might be very unpopular politically 
at the time, but the right thing to do. Would your criteria then allow 
that kind of a Court or Justice to do that sort of a thing? 

Mr. Kelly. I would even dare to apply the concept of independent 
judgment to a United States Senator on occasions. That is to say, 
I think the American political process at its best is not merely one in 
which politicians are supposed to be stifled. I am aware they often 
are, but I perfer to conceptualize the relationship as a reflex arc, 
that is a United States Senator should be a molder and a leader of 
public opinion, not just a siphoning process in a computer. I am aware 
of the paradox that is involved in that in a democratic state. 

Senator Abotjrezk. That phrase is used on the stump all of the 
time, but in practical reality I do not see too much of it. 

Mr. Kelly. Well, I think that as a constitutional historian, I would 
argue with you a little about that, but that is a little off the theme of 
what we are getting at here. But, I would insist that a Judge of the 
U.S. Supreme Court have the power to make independent and even 
unpopular decisions. And my colleagues here also could give you a 
list of a dozen decisions that were fraught with political implications 
and which I think, on a majority basis in the United States in the 
last 20 years, would have been voted down if they had been put to the 
public. That does not mean that they were not political decisions. 

By saying they are political, I do not mean that they reflect, in the 
narrow sense, a computerized process of democratic development. 
What I mean is that the man who makes them is aware of the process, 
that constitutional law is dynamic, that is growing, that it has a 
relationship to the thrust and the direction of the democratic process 
and to the growth of the country at large. And he is aware of the 
meaning of it in that sense of the word. I would certainly expect him 
to have independence of mind, conviction, and philosophic awareness 
of what he was doing. He has an appointment for life to protect him 
against political reprisal and he certainly ought to be able to take 
advantage of that. 

I think one could take, for example, the decision on separation of 
church and State. If the four or five decisions on separation of church 
and State with respect to parochial schools in the last 5 years were 
put to a popular vote in the three States that they have -affected the 
most — Pennsylvania, New York, and Rhode Island — I think they 
would have been voted down by a large majority. Yet those were 
political decisions in terms of a thrust and direction which they gave 
to the constitutional system. 

I do not mean to say that they do not involve high questions of 
principle about the nature and the character and the destiny of the 
American constitutional system, because I think they did. One could 



18 

argue that, on both sides, whether he disagreed or agreed. But, I also 
think that they were public policy decisions with profound public 
policy implications. 

L think those Justices, from Chief Justice Marshall, who understood 
thi> very, very well indeed, to Chief Ju>tice Warren, who certainly 
understood it al>o, have been the most successful as Justices on the 
Court. I do not think we ought to ahy away from the political observa- 
tion about the Court or the character of a political appointment. 
md that, it seemfl to me thai these men come from every conceiv- 
able kind of background. And one thing that stands out is that they 
.have not been particularly experienced in the judical process in the 
narrow sense of the word. 

I deliberately gave you a li.-t of men that does not include a single 
appellate or district judge, on the Federal level. We could put another 
li-t along with them. There obviously have been some g'vat appellate 
judges that went to the Court, Tai't, Holmes, Cardozo, White 
30 on, and someone could lengthen that list greatly. 

But, the important fact is that many Justices have often been 
politicians, that is to say men whose roies have been thai of legislators, 
CongresssDaeft, Governors, or Senators and the like; these men have 
more often than not. I think, been the stuff out of which the great 
Justices leive come. And I would argue that that is not an accident, 
that they have understood the political process ;ind what the role of 
the Court was. And I would argue also, although this is a higher 
Controversial point, that the changed character of judicial review has 
caused the Court to take oxer certain legislative function-, with 
re-peer 10 which legislatures themselves seem to be paralyzed. I 1 
for example, the leaker decision with respect to apportionment. The 
fart that the Justices performed that function now (it can be argued 
that they always have, but they certainly perform it now) make- it 
B important than ever that the President appoint and you confirm 
a public man. 

I have ideas about a lot of these other questions, too, but I have 
len long enough. 

S i.'itor Ke.wkdv. Thank you I - >r Kelly. Prolessor Howard, 

we are delighted to have you here. Professor Howard i- professor of 
law at the university of Virginia, author of many article- en Jusl 
Black and Powell, and currenily writing a book OB "The Bll 
Court." And we will not hold the fact that you are an old l 

of Senator Tunney'a and mine against you. 

Stat!;mi;\t of A. K. Dick Howard, Professor, University of 
Virgin] \ School of Law- 
Mi-. Howard. Like my colleagues here, 1 Lave no prepared - : 
or remarks. But your introductory statement and that of 
Abou e/i i\ to me two fundamental questions which 

in ni\ judgment would concern you and your colleagues on the 3 
Judiciary ( 'ommittee. 

One of tho i 'he essential and legitimate cole of the 

committee and of the full Senate in pa a nominee: to \ 

extent i- the itanat to conceive of it- U a- being an equal and full 
partner in the procc of seeing who goes on the U.S. Supreme ( tourt. 



19 

The other question is one that has been addressed at greater length 
here today: by what criteria do you make that judgment in passing 
on a nominee. 

The first question need not detain us very long. A good deal could 
bo said about it. There have been times in history when one might 
have thought that the Senate had slid into a somewhat junior partner 
kind of role — that unless the nominee were extravagantly out of 
the ball park, unless he were grievously unqualified and flawed in 
some singular way, then the Presidential nominee ought to be con- 
firmed. Were we sitting here 10 years ago, one might well have argued 
that, whatever the original intention of the Framers of article II, 
the convention had arisen, especially in the early part of this century, 
of a generous presumption in favor of a nominee, with the result that 
only clearly unqualified nominees would be rejected. I think the 
events of. the last few years have cleared the air on that point. The 
Senate has properly reasserted itself as having a full and plenary 
role to play along with the President, who makes the nomination. 

There is nothing in the text of the Constitution, there is nothing 
in the Philadelphia debates of 1787, nothing in the Federalist Papers, 
nothing in short in the Constitution's text or history which requires 
the Senate to assume a deferential role. Moreover, it seems to me 
that not only constitutional law, but also good public policy will 
argue in favor of thorough senatorial review. The Senate, after all, 
will find its legislation passed on by the Court as much as the Executive 
will find its actions under review. That alone argues for your taking 
great care with nominees. 

So, I will not linger on that point, unless perhaps later on you have 
some questions about it. 

Let me turn, therefore, to the question which has been more fully 
addressed by my colleagues on the panel: the question, by what 
criteria should the Senate pa^s on a nominee, what qualifications 
should one take into account — ethics, integrity, professional com- 
petence, age, geography, race, religion, sex, politics, partisanship, 
and so forth. In my judgment, to answer that kind of question, one 
would do well to begin with some assumptions about what one thinks 
the Supreme Court is there to do. For me the criteria which, were 
I sitting on the Judiciary Committee, I would use would turn on some 
underlying assumptions about the Court. 

For example, if one conceives the Court as sitting essentially as 
lower courts sit — trial courts, State courts, Federal district courts — 
as a court to try cases and give a legal judgment, if that is the kind 
of court the Supreme Court is, then one is primarily concerned about 
professional qualifications in the narrowest sense. That is to say, able 
lawyers with good credentials, with first-class legal reputations, 
<;ted at the bar, men of intellectual, legal, professional sharpness 
who can decide on a set of facts, make a judgment, and write a 
persuasive opinion. There is some element of that in the work of 
the Supreme Court, and to that extent a nonlawyer might well be 
handicapped on the Court. 

But one tends to be so engaged by the cases that have great public 
interest — church-and-State cases, free speech cases, civil rights case: — 
that one tends to overlook the fact that a great range of very tech- 
nical decisions come out of the Court — labor, antitrust, regulatory 



20 

agencies, and so forth. In cases of that kind, the nonconstitutional 
part of the Court's business, lawyerly abilities become more im- 
portant. 

But, surely, nobody living in 1975 can suppose that all the Court 
does is decide cases between litigants. The Supreme Court is not like 
other courts 

Felix Frankfurther and others who have written about the Court 
have persuasively driven home the point that appointees who go 
from other courts to the Supreme Court find that it is a new ball game, 
it is not the one they played when they were on the New York Court 
of Appeals, or the Federal District Court, or the Circuit Court of 
Appeal-. That being the case, one has to take into account the sorts 
of things Professor Kelly had in mind ; namely, that the Supreme Court 
JOurt that does more than simply decide cases in the narrow, legal 
fashion. It is a Court that mediates between tradition and change, 
a Court that preserves the best of law and social heritage, but that 
also tries to accommodate the body of law and justice to changing 
needs and changing perceptions. 

What one is looking for, therefore, is more nearly the public kind 
of person, the person who has had to deal with important public issues. 

There is yet a third way to view the Court, which is important, too. 
It is perhaps what Dean Pollak had in mind, that is, that the Court is 
all of the things I have just mentioned, but it is also a minor of the 
American people. People whose aspirations are thought to be sub- 
merged in this country look ultimately to that tribunal as the outlet 
for some of their frustrations. It would be difficult for me to imagine 
the Supreme Court in modern time-— when they have dealt with 
street demonstrations, with sit-ins, and with so many other racial 
questions that perculated tip to the highest Court — to imagine that 
Court never having had a black member. I am thoroughly grateful 
that Thurgood Marshall has sal on the Court during much of this 
period in our history, not so much so for the precise votes that he east 
in particular cases, but rather because black citizens can perceive a 
court that i.-^ not a lilvwhite court, not a court for white people only. 
To that extent, I think it would be useful, whether with this nomina- 
tion or gome other, to see a woman sit on the Court; then that last 
significant social barrier would fall. It seems to me, however, that cue 
i- mistaken if he pick< and chooses among those models of the Court 
and decides on only one that he is going to follow. 

Since the Court is ;i lav court and decides cases, since it is a mirror 
of the people and, therefore, to that extent, has a representative 
quality, and since it i- finally mid perhaps mote fundamentally a 
mediator of social change, arguably "legislative" since it i- all of 
those things, then ideally one judges nominees with all oi those models 
in mind. 

Regarding Mr. Meserve's assumption: a- to professional credentials 
you d<> want a man other lawyers will respeel as a good lawyer if 
indeed, the nominee i> a lawyer, And as 1 said a moment ago. there 
He burden if tie' man <>r woman i- not a lawyer. As to "repre- 
sentative" qualities, I would try not to hang up too much on specifics 

of race, religion, sex, geography, and the rest, I would try to subsume 
those in some larger approach, looking Un- the kind of nominee who 

public person and who baS dealt with puhlir LSSU6S. 



21 

I would reject the argument that a nominee must have sat on a 
lower court, have been a judge before he came to the Supreme Court. 
I would reject the argument that he must have been a practicing 
lawyer, as opposed to an academic or other kind of lawyer. I would 
reject the argument that a politician, whether he sat in the Congress 
or somewhere else, was not the best person to choose. I would say 
now that there is a common denominator cutting across those pigeon- 
holes and categories; that common denominator is a breadth of 
experience and vision attained by a person who, in one way or 
another — in practice, politics, a lower court, or whatever — has had 
to engage himself with fundamental and important issues of a kind 
that would characterize the work of the Supreme Court. 

Senator Kennedy. Very, very fine indeed. 

We have been talking about the public figure, the importance of 
such an experience in terms of service on the Court. 

Let me ask Professor Swindler whether in view of the recent pay 
increases in the Supreme Court, whether the emoluments clause of 
the Constitution automatically disqualifies a sitting Senator or 
Congressman to appointment to the present vacancy? 

Mr. Swindler. My personal opinion is that it does, indeed — for 
two reasons: one, that it was an across the board pay increase and 
any rollback for a specific individual would be conspicuously an 
accommodation for that individual or the political pressures behind 
him; the other, because it would establish a remarkable precedent, I 
think, for varying salary scales on the Supreme Court, granted that 
this discrepancy might be remedied at the normal end of that particu- 
lar Senator's term, or Congressman's congressional term. 

The case of William Paterson is a striking one here. You may recall 
that President George Washington nominated Paterson among the 
first six Justices of the Supreme Court that had been created by the 
first judicial act, and before the Senate could even address itself to his 
qualifications, apparently the Senate did not concern itself with this at 
all, all of them were approved immediately, but before the Senate could 
act on Paterson, his name was withdrawn because it was called to 
Washington's attention that Senator Paterson had been a Member of 
the First Congress which passed the acts creating the Federal judiciary. 
He was in the second class of Senators who served only 4 years; 
therefore, when his 4 years were over, which was a matter of just a few 
months later, he was again nominated and duly confirmed. 

It would seem to me that under the present circumstances you have 
one course of action which is self-defeating, and that is to roll back all of 
the salaries of the Federal judges, and when the Chief Justice is saving 
he cannot retain people in office with what was proposed, then I do 
not think you will have aii3 T if you were to roll them all back. 

The other is that 

Mr. Pollak. That would be unconstitutional, would it not? 

Mr. Swindler. Well, I suppose you could repeal the statutes and 
pass new statutes. But in any event, you certainly have this problem 
of having Associate Justices who, from the very beginning — I believe 
the first salary scale was $4,000 apiece, and they were considered to be 
substantially overpaid — have always had the same salary, and bo 1 
should think that as a matter of fiscal tradition, if for no other and 
better reason, this would be undesirable and perhaps a total barrier. 



22 

Senator Kennedy. You spoke about the individual statute that 
could he pang e d to permit an individual to be able to circumvent this 
requirement. Do you feel that would be constitutional? 

Mr. Swindler. Yes. 

Senator Kennedy. Yes, to eliminate the application of the pay 
increase for a particular individual? 

Mr. Swindler. I am not sure what Dean Pollak_had in mind in 
terms of the constitutional objection. It would seem to me that I 
general judicial salary increase could certainly have had in it certain 
exceptions, and it would be extended only to certain branches of the 
judiciary. 

5 ttor Arotrezk. I do not have a copy of the Constitution here, 
but I think it says that the salary shall not be diminished during his 
term of office, and that is in the Constitution. 

Mr. Pollak. That was my problem, Senator. Any reduction in the 
al level of the judicial salaries would simply confront that 
insurmountable barrier. 

S iator Arourezk. And Attorney General Saxbe, you will recall, 
when he was appointed out of the Senate, he had to take a cut in pay, 
and then we passed a law to take care of him after he got out of the 
Senate. But 1 do not think you could do that with the Court with 
thai constitutional provision. I do not think that even would be 
allowable. 

Mr. Swindler. I certainly agree. I understand his point now. I 
certainly concur. 

S later Kennedy. Perhaps the panel could talk about some of 
the examples of Presidents who conducted a search for the best 
individual- to serve on the Supreme Court. What did they do, and 
ere any lessons that we could learn from that experience? 

Mr. swindler. 1 believe, Senator Kennedy, yon were inquiring 
tl the historical record of procedures that Presidents have followed 
in seeking the best. My own matured reflection and conclusion alter 
studying at leasl the processes for the period of the second eenun\ of 
the Court, from 1889, has been that this is lipservice that is paid, that 
when Presidents are Becking an outstanding candidate, particularly 
for the Supreme Court, they are seeking the hot in the context of the 
political or philosophical accommodations they have already set up 
a- their own personal criteria. Jt may be true that Judge Cardoso was 
recommended \)y an almost unanimous academic and professional 
community, and that this amounted to a pressure thai Pioidcnt 
Hoover recognized. But at the Bame time this would he a conspicuous 
ption, I suspect. 

- nator Kennedy. Do any of the others on the panel wsnl to make 
any comments? 

Mr. Howard. Senator, it seems to me that the process of selecting 

a nominee, especiall} to the Supreme Court, i^ not likely to he oon- 

bical. 1 think it is unrealistic to suppose that polities, in whatever 

jense, never enters in. That means that the KeSSOi) to he learned, to 

borrow your phrase, to not bo much tr\ ing, as a citizen, to gire advice 
6 President on how he should come up with his nominee and how 

he shook] fashion the search and what criteria he should u-e. The 

Lesson emphasises that the process, while n search tor the best person, 
has political connotations. Both parties to that >ear<h the 

President, who Dominates and the Senate, which confirms or rejects 



23 

enter into a process which brings out as much as one can learn about 
the person who was, in fact, put in nomination. 

There have been some useful examples in recent years of the Senate's 
serving the role of bringing information to the public's, as well as 
their own attention, information which might not have come out in 
the first place. 

Senator Kennedy. I know Dean Pollak has to leave shortly, but 
let me ask you a question. Would it not make some sense for the Presi- 
dent to publish a list of names that he is thinking about so that you 
can get some comments from different groups on these individuals so 
that the President could make a final judgment? Would that not serve 
a useful purpose rather than just trying to keep the list quiet or secret, 
and then finally revealing one and popping it on the Senate? 

Mr. Pollak. You are suggesting, Senator, that the President would 
publicly state that he is interested in and has asked for professional 
comments? 

Senator Kennedy. Suppose there are 10 different names that the 
President is going to choose from, unless of course some other name 
comes up by some other kind of means. He asked the Bar Association 
for their comments. Why would one want to keep them secret and then 
make the recommendation? Is that useful in terms of the American 
public? 

Mr. Pollak. Well, I guess I don't have a very strong view either 
way. I can certainty see that one would, as President, rather wish not 
to be, by publishing the names of 10 or a dozen possible appointees the 
center of essentiahV a lobb}ung process in which groups begin to form 
to propose or to support or to attack a particular nominee. I am think- 
ing beyond the question of what this may do for the particular persons 
that are in this public tug of war. I am really thinking that the Presi- 
dent's ultimate freedom of action and freedom of sensible judgment 
may be prejudiced. 

On the whole, I guess I do see some merit in your thought. Senator. 
I guess I am still a little more comfortable with the idea of having this 
scrutiny directed to the nominee after the President puts forward a 
particular name. 

May I slightly change the subject, Senator, to go back to one of the 
other matters, because I am about to depart? I simply wanted to say 
with respect to this discussion which we have all had as to the qualifica- 
tions, I fully subscribe to what I think my colleagues have said about 
the public person aspect of a nominee, I don't think we ought to be 
understood as saying, that the role of the Court with respect to its 
larger, for the most part constitutional domain is really just a higher 
form or more elegant form of legislating. That was implicit in Senator 
Abourezk's original question, I think, to Professor Kelly. I do not 
mean that Senator Abourezk was embracing that concept, but iie 
was putting that concept before us. It is a part of the general criticise? 
of the Court. From my point of view, it has been an unwarranted 
and essentially an inappropriate generalization of what the Court 
is there for, and what, in fact, it has been doing although there may- 
be particular cases to support this view. And I precisely subscribe 
to the observations made by Professor Kelly that if one gets a public 
person such as Governor Warren, if you will, when he has the Consti- 
tution in his custody, he will not be the reflex of the ordinary public 



24 

opinion processes but will vindicate constitutional values wherever 
the chips ma}' fall. 

3 the Court's role is really a very different one from this body's. 
if you will, and properly so. But it is one of making ultimate policy 
choices for the country at the highest levels, and that is why one 
wants a person of the greatest breadth. That breadth may be obtained 
in political life, it may be obtained in law practice, it may be obtained 
in teaching, as with Justice Frankfurter, or even as a State court 
judge, as with Holmes and Cardozo. There is no single definition of 
the right profile. 

If you will excuse me. Senator, I have to go. 

Senator Kennedy. I do not know whether the others wish to 
comment on the publication of the list. If we are talking about 
involving the public in the process, it may be looked upon as lobbying 
or subjecting these individuals to the Worst aspects of political life. 
Hopefully you are subjecting them to the be^t aspects. Through this 
kind of a free flow of comments', suggestions, or observations about 
them, the people best qualified would emerge and there would be a 
natural process by which the President would make a recommenda- 
tion; and the Congress and the Senate would embrace it. 

But I don't know. Do any of you have comments on the open 
publication'/ 

Mr. Swindler. One think I might say, Senator Kennedy, is that 
this does become a [natter of political manipulation and political 
gamesmanship, if you will, when the names are not officially an- 
nounced'. In almost all cases, they will all be known, thanks to the 
uity of the media. When 1 used to be a newspaperman J heard 
rase used in Washington that nothing is easier to cover than a 
secret meeting. I suspect that that still obtains. 

One thing that worries me is that there seem to be two groups of 
names that the President— any President — tends to allow to be 
leaked out without his committing himself to one or the Other. One 
group i- a group that i- submitted to the American Bar Association 
for professional review. A member of the judiciary or the standing 
committee of the ABA phoned me about a week ago and read me the 
names in confidence because he was soliciting some evaluations, and 
he -aid to keep this very confidential. The veiy next morning the 
entire list was in the Washington Post. And I phoned him to tell 
him that I did not give anyone the li-t. A- a former newspaperman 
I was not surprised that it was there. 

The other group of names apparently is a group of names that 
float- past the influential members of the President's own party, and 
apparently their political acceptability is being sought, I assume, so 
that somewhere in the processes of determining the specific candidate, 

the White House i- trying t<> find the name that happens to surface 

most favorably in both the ABA's scrutiny and in the party's scrutiny. 

I suggest that that may not always happen. There is a difficulty, it 

seems to me, and perhaps this i> what you have in mind, of a President 

deliberately Using both the ABA and the media to conceal hi-- ultimate 

candidate. A- I recall, when the last two nominations were made for 
the positions now held by Justices Powell and Etehnquist, every other 
name except those names found their way into the media, and the AHA 
went to a considerable length, apparently, to evaluate some of these 
and to hasten to saj that some of them were not acceptable. 



25 

But as far as I know, the ABA did not have any invitation to con- 
sider either of the men who actually were nominated. And this is an 
example of perhaps Presidential manipulation of the media, and perhaps 
this could be avoided if a commitment to make all of the names public 
were made. I suspect it would be political^ unacceptable to the White 
House. 

Senator Kennedy. Air. Kelly or Mr. Howard, do you have any 
reactions? 

Mr. Kelly. I think, Senator Kennedy, you are suggesting something 
perhaps quite different than has ever been done before. My tentative 
reaction when you suggested this was to say that the idea was an un- 
fortunate one. Many Presidents in the past have floated names; to 
mix up my metaphors, they have floated them both to the surface with 
the press and they have floated them underground through Congress, 
or newspapermen, in a confidential wslj. Franklin Delano Roosevelt 
did that; Harding did it regularly, and so on. Maybe it's inevitable 
that that process happens, and I do not think you are going to stop 
Presidents from seeking advice. 

Some of them, such as Harding, for example, even turned to the 
Supreme Court to get advice, although Taft's relationship with Hard- 
ing in that respect was not very successful. But certainly when Presi- 
dent Nixon attempted in a kind of way to publish a list, gave it to the 
Bar Association and implied that his nomination somehow would come 
from there, and when the nominations leaked to the press, the result, 
and I am thinking of that summer of 1970, somehow had a bad effect 
both for the President and for the United States. Maybe that was in- 
trinsic in the peculiar political circumstances of the Presidency at that 
moment. But it had a bad effect for the Presidency of the United 
States and it had a bad effect, I think, for the Bar Association. The 
process didn't work well. 

Now, maybe if it were a formal public statement to the U.S. Senate 
of a list which the President had already worked out, in which he said 
I have privately cleared these names and they are now before you for 
your consideration, I do not promise to nominate from this list, but I 
should like your reaction, what you are really doing is suggesting that 
the phrase "advice" in the Constitution be invigorated for the first 
time in 180 years. As a constitutional historian, 1 would observe that 
that word "advice" started to die in the Washington administration, 
and except for occasional threats of one kind or another, it has been 
pretty much left alone ever since that time, never having had any real 
substance to it as a formal constitutional process since the famous 
confrontation between Washington and the Senate in 1789. And as a 
constitutional historian, I would even argue that probably the prem- 
ise of the convention with respect to the role of the Senate when it 
used that word was that of the Senate as an advisory body in the sense 
that upper houses had a cabinet function in colonial times, and obvi- 
ously the growth of the Senate, plus the tradition of the separation of 
powers, more or less destroyed that function. And it has never had it. 
And one can certainly understand the attempt and the interest of the 
Senate of the United States in restoring that word with some vigor. 
Conceivably this process you speak of would have meaning if it were 
done not as a legal process but as a formal public statement. 

I think your difficulty, Senator, would be that the President of the 
United States would think himself limited by the process in a way 
that he might find politically unacceptable. 



26 

Mr. Howard. Senator, my reaction parallels that of Professor 
Kelly. I believe the suggestion you are ailing might require some re- 
adjustments of constitutional assumptions about the separation of 
powers. Therein lies one's hesitancy about it. If one had nothing but 
the text of the Constitution before him, the advise and consent 
language might suggest more than has come to be the case. I think 
the "advice" part has atrophied, and what you are really talking about 
is consent. Therefore, one either has to pass a statute forcing the 
President to come up with a public list, a procedure about which one 
might have constitutional reservations, or one simply hopes that the 
President will do it, in which case 1 -u-pect that the politics of the 
situation may prevail. 

Senator Kennedy. Senator Mathias has joined us here this morn- 
ing. Senator Mathias has joined with Senator Abourezk and myself 
in sponsoring this particular meeting this morning. 

Before yielding to Senator Mat Idas and Senator Abourezk, I want to 
extend my very warm sense of appreciation to our panel here this 
morning for the obvious thoughtful considerations that you have been 
giving these issues. 1 think they will be helpful to us on this committee, 
and hopefully they will be helpful to the Senate as we try to fill our 
responsibilities in meeting the constitutional requirements of advice 
and consent on the next nominee. I think this meeting ha- been 
u-eful and helpful. I was asked by one of our colleagues when we 
were talking about this in the Judiciary Committee whether we would 
hope to extend this kind of a ventilation of both history and consti- 
tutional understanding to other appointive offices that would be 
before this committee, and I think it may very well be helpful and 
useful in trying to establish criteria or at least some guideline- in 
(he areas of other Federal judges or U.S. attorneys or other-. 

We are not making a decision on that today, hut I just wanted to 
indicate to our panel how much I personally value your comment- I nd 
your ideas and thought- on this, and I wanted to say I appreciate 1 ; OUT 
willingness to share your experience with us here this morning. 

I wunt to thank you and yield to Senator Mathias and Senator 
Abourezk. 

iator Mathias. Well, I join with Senator Kennedy in thanking 
everyone who has participated in the panel. And I think we should 
confess that we have -onie selfish motives in stimulating this panel, 
the m>!jh|) motives being J think we are trying to lock the -table 
before the horse i- out of it. Those of as who have spent many painful 
hour- in this very room during some of the Supreme ( Jourl Domination 

healings, have found the responsibility of withholding consent 

necessary, but not a plea-ant experience. We would like to avoid 

that by building into the system whatever new and more thoughtful 

procedures can be devised. 

Now, there are tho-e, of cour-e. who have objected even to thi- very 
formal proceeding on the grounds that it might invade the Executive 
prerogative. I think that i- nonsense. I think we are entitled, if we feel 
the need, to develop a checklist of items that we might want to COD 
when nominee- come before u-. And I think it ha- some value t«> do it 
in advance when it |fl a completely objective and imper-onal exercise. 

I do not think it bind- members of the committee or the Men 

of the Senate, because obviously Senator Abourezk may put more or 

higher priority on Some item- on the checklist than 1 would, and \ ice 



27 

versa. But the value would be that there was a checklist against which 
every nominee could be impartially and impersonally measured. I 
think this could be helpful, and I think that this is a proper function 
of the Senate in the discharge of its portion of the appointment power. 

So, I am grateful to you, and I merely regret that I did not have 
more opportunity to be here earlier. I was locked up with the CIA 
Committee in an airtight chamber with the Secretary of State all 
morning, and it was very dim cult to escape. But we are nonetheless 
grateful, and I will review the record with great interest. 

Senator Abourezk. In reflecting on the checklists that all of you 
have provided and, of course, the political requisites that President 
Ford is faced with in an election year, my only comment is that it is 
too bad that Nancy Reagan is not a lawyer. 

In a serious vein, this has been highly enlightening for me and I 
cannot thank you enough for the great service you have performed in 
providing advice not only to those of us here, but those Members of 
the Senate who will read about what you have said in the press and in 
the committee print that we are going to provide. I want to express my 
personal gratitude. 

This meeting is adjourned. 

[Whereupon, at 1:05 p.m., the symposium adjourned.] 

o 



UNIVERSITY OF FLORIDA 



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